Appeals Court To Explore If A Site With 'Dirt' In The URL Loses All Liability Protections For User Comments
from the this-is-kind-of-important-for-us dept
We've covered the bizarre case of Sarah Jones vs. Dirty World (operators of the website "thedirty.com") for quite some time. If you don't recall, this former professional cheerleader/school teacher got upset when a user of thedirty.com posted some statements about her that were potentially defamatory. Rather than go after the actual person who made those claims, Jones sued the site. Well, technically, she and her lawyers first sued the wrong site, which made for quite a mess at the beginning. Eventually, though, she sued the right site, which correctly pointed out that they were protected from liability for their users statements under Section 230 of the CDA. Every court that has taken on a Section 230 case like this has ruled the same way -- that sites are not responsible for the statements of their users. Every one. Until this one. Even more ridiculous -- especially for those of us here at Techdirt -- was the fact that the judge specifically stated that one of the reasons why the site was ineligible for Section 230 safe harbors was because the site had "dirt" in its name:First, the name of the site in and of itself encourages the posting only of “dirt,” that is material which is potentially defamatory or an invasion of the subject’s privacy.Yikes! Given the judge's nonsensical rejection of the Section 230 safe harbors, the case went forward and the jury awarded Jones $338,000 from the site. Not surprisingly, Dirty World appealed, pointing out that the court clearly got the Section 230 analysis totally and completely wrong. David Gingras, the lawyer for Dirty World, has provided a plain language explanation of the case, the process and the importance of this, along with the opening brief of the appeal. If you're not a lawyer or haven't followed this case closely, it's a good way to catch up on the details -- including why this case is so important.
As Gingras notes, nearly every circuit in the US has ruled that Section 230's safe harbors apply to websites, and remove liability from the sites for actions taken by their users. The circuit this particular case is in -- the Sixth Circuit -- is one of only two circuits that has not taken on this issue directly. So this is the first chance for the court to do so, and it can either agree with every other court, or it can try to forge its own way, which will almost certainly lead to Supreme Court review over the nature of the Section 230 safe harbors. Given just how key those safe harbors have been to innovation and the growth of the internet, this case is incredibly important on a whole variety of levels.
While I'm most interested in the larger legal questions concerning making sure Section 230's safe harbors are kept strong and intact, there is also (obviously) the issue that impacts us directly about the use of the name and the word "dirt." The brief has a whole section explaining why the name of the site is irrelevant (citing numerous cases that agreed). However, given that our name includes "dirt" as well, I'm tempted to explore filing an amicus brief in this case on that particular issue, given that we have a... unique perspective on this particular issue. While I admit that the other points in this case are clearly more important in the long run, I'm sure that Gingras and other amici will likely be able to handle those arguments easily.
Still, this case is going to be important to follow. Either the court will confirm, yet again, the core ideals that have helped the internet, innovation and user-generated content sites to flourish over the past decade and a half, or it will put all of that at risk. Just the fact that this is up for debate is troubling enough -- and while we're hopeful that the court will rule wisely, the small possibility of a ruling upholding the initial judge is immensely troubling.
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Filed Under: cda, sarah jones, secondary liability, section 230, sixth circuit, thedirty.com
Companies: dirty world, thedirty.com
Reader Comments
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How Dirty?
As the author points out, this site is Techdirt, but my interpretation of the "dirt" angle is more "the journalists who dig" rather that "nasty bits". Dirt is in the eye of the beholder...
(Which brings up the next question - "digg"? does that imply "dirt"? How about "Durt"? are you indemnified if you misspel the name?)
It seems this is a can of worms (oops is that dirty?) better left unopened by the court.
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Re: How Dirty?
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Re: Re: How Dirty?
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Isn't this a 1st Amendment issue for the website? I mean can't you pretty much call yourself anything you want? Why should "thedirty.com" or "Techdirt" have to become "thePrettyPrettyPrincesses.com" or "TechPinkAndFluffyUnicorns" in order to have Section 230 of the CDA apply to them?
I just don't get it... it's blatant discrimination by the court!!!
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HE is saying: IF thedirty had the name 'puppiesandrainbows.com' with the EXACT same content, THEN they would have 'safe harbor' ? ? ?
total bizarroworld...
evidently can't reason his way out of a wet paper bag if you spotted him a knife; but i bet he rules how Empire likes ! ! !
(that's the important thing, ain't it ? ? ?)
art guerrilla
aka ann archy
eof
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No, "correctly pointed out" was decided NOT TRUE.
You've still a duty to moderate comments, and many sites do so. If you brag that you're "dirty", get sued and refuse to take down the comments, and then like a legalistice weenie try to hide behind mere statute, then you've definitely done a positive act and deserve to lose under common law. All those factors are present here, and not coincidentally, a jury holds my view, not legalistic Mike's. A victory for the site here means individuals lose rights.
Safe harbor statutes can't extend beyond common law. Nor should appeal overturn this jury decision. Courts -- that is, lawyers who all belong to a medieval guild that deliberatly restrains free trade and civil rights -- are not equal to juries of our peers: THAT is in the Constitution.
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Re: No, "correctly pointed out" was decided NOT TRUE.
OK. I'm doing my part right now. Click.
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Re: No, "correctly pointed out" was decided NOT TRUE.
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Re: No, "correctly pointed out" was decided NOT TRUE.
No you don't. NEXT FALSE STATEMENT PLEASE!
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Re: No, "correctly pointed out" was decided NOT TRUE.
Well in that case you certainly are in NO postion to moan, whine or complain that your posts get hidden or removed on this site being as people report your posts which are unmoderated and those posts of yours that do get hidden or removed is prove positive that the site is doing the duty of moderating comments. Yet you will still complain that your posts get hidden or remove even though the site is doing the right thing in moderating the site.
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Re: No, "correctly pointed out" was decided NOT TRUE.
Two things:
1. Appeals still have juries too.
2. THE JUDGE WAS THE ONE THAT THREW OUT THE SAFE HARBOR NOT THE JURY YOU HUGE IDIOT.
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Re: Re: No, "correctly pointed out" was decided NOT TRUE.
1. Appeals still have juries too.
2. THE JUDGE WAS THE ONE THAT THREW OUT THE SAFE HARBOR NOT THE JURY YOU HUGE IDIOT.
Speaking of huge idiots…….
Federal appellate (circuit) courts DON'T have juries you halfwit. Juries are finders of facts, not interpreters of the law. The appellate and Supreme Courts limit their findings to the law and Constitution.
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Re: Re: Re: No, "correctly pointed out" was decided NOT TRUE.
Not in the United States Court of Appeals for the Sixth Circuit, they don't.
See the Federal Rules of Appellate Procedure.
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Re: Re: No, "correctly pointed out" was decided NOT TRUE.
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Re: No, "correctly pointed out" was decided NOT TRUE.
Actually, it kinda does.
By providing a space for outside visitors to leave their own comments, a site owner has Section 230 safe harbors. They can't always account for what those visitors might post — or how people will react to those outside comments. That makes the safe harbor protections important: they place the responsibility of the comments on the people who made them, not the service that hosts them.
If the safe harbors don't apply to a website that allows user comments, one could expand that idea to cover other services which host ‘unfavorable’ content (e.g. webhosting companies).
Legal liability for any comment made by a third party on any Internet service (e.g. imageboards, YouTube comments sections, Twitter) should stick with the third party until/unless a court says otherwise. Destroying the safe harbors — especially over a specific word used in a URL — would wreak havoc upon the Internet and run counter to the idea of free and uninhibited speech.
You've still a duty to moderate comments, and many sites do so.
Actually, no. With the exception of any content that willfully and knowingly breaks the law, Techdirt’s admins/writers/grand poobahs have no ‘duty’ or obligation to moderate the comments in any way. They may moderate comments in order to push for more intelligent discussions (and push back against trolls), but they don’t have a duty to do that.
If you brag that you're "dirty", get sued and refuse to take down the comments, and then like a legalistice weenie try to hide behind mere statute, then you've definitely done a positive act and deserve to lose under common law.
A specific word used in a publication’s title, website name, or URL can’t become the basis for the destruction of legal safe harbors. Regardless of what the word ‘dirt’ or ‘dirty’ implies, sites with those words in the title/URL don’t ‘deserve’ any less consideration under the law than a site with ‘news’ in the title/URL.
The word has negative connotations, sure, but so does ‘FOX News’, and I doubt any court in the land would rule against Rupert Murdoch’s vast media empire in a hypothetical safe harbor case involving foxnews.com.
If we choose to censor a website — to remove all legal protection for that website and thus chill the speech of its owners and visitors — we cannot rely on a single word in its title/URL as a rational justification for that action. That way lies madness.
All those factors are present here, and not coincidentally, a jury holds my view, not legalistic Mike's.
The jury awarded a victory to the plaintiffs in this case because the judge rejected the very notion of safe harbors applying to the website. Had the judge not removed the Section 230 defense from the table, the jury may have ruled differently.
A victory for the site here means individuals lose rights.
Bullshit. A victory for the plaintiffs in this case would mean the loss of individual rights: if allowed to stand, this ruling would remove the legal safe harbors for any site with the word ‘dirt’ in its title/URL.
A site could ban the use of the word to prevent usernames/user submissions from triggering a collapse of safe harbors. ICANN could refuse to assign domain names to US citizens if the domain includes the word ‘dirt’. Other words could eventually go up on the chopping block as ‘non-protected’ words.
Professional wrestling websites, for example, may feature the word ‘dirt’ in the title/URL because of the commonality of ‘dirtsheets’ (which refers to pro wrestling’s behind-the-scenes rumor mills in this context). A fair number of those sites would immediately lose their safe harbor protections over a single common term unrelated to the case at hand instead of the actions of their owners.
This ruling would not protect individual rights. It would eliminate rights for numerous people unrelated to the case at hand based on the ‘bad’ connotations of a single word.
You cannot respect the rights of Free Speech and freedom of the press we have in this country while simultaneously holding this ruling up as a ‘protection’ of individual freedoms. If you can, I’d really like to know how.
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Re: No, "correctly pointed out" was decided NOT TRUE.
Care to provide a citation on that one? That really makes no sense, even before electronic communications. If I rent you my megaphone, do I have a responsibility to moderate what you say when you use it? How would this be different?
Safe harbor statutes can't extend beyond common law.
Say what? What the hell are you talking about? Statutes can and do quite often supersede common law rulings. I don't know what your definition of common law is, but for the rest of us it simply means existing caselaw and court decisions.
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Re: No, "correctly pointed out" was decided NOT TRUE.
Remember that knucklehead that used to scream and whine that Mike was "censoring" him?
A web site that has such strong convictions for free speech would never moderate the comments.
Besides we can do that (as I just did to your rant Blue)
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Re: Re: No, "correctly pointed out" was decided NOT TRUE.
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Re: No, "correctly pointed out" was decided NOT TRUE.
........and yet TechDirt, STILL allows YOU to comment, funny that, huh, OOTB
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Re: No,
given your past posts reveal a demonstrably poor understanding of common law you're better off not even using the term. I'll bet at least half the readership stopped reading there.
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All sites need to worry about this
All websites need to worry about this.
Suppose that the original site, instead of being called "The Dirty" were called "The Low Down", "The Scoop", "The Ugly Truth", etc.
Then some moronic imbecellic self important judge somewhere could have ruled that any website with the following words loses Section 230 protections. (Even though they thought they had them.)
* Low
* Down
* Scoop
* Ugly
* Truth
* ...and most importantly: The
So an innocent site named The Family Hour could be threatened. Think not? That is exactly what TechDirt is concerned about here. Suddenly a site that thought it had Section 230 protections is told it doesn't because of a single word used in the name of some other unrelated site, in some unrelated lawsuit. A lawsuit and case that you might not even be aware of! How are all website operators supposed to discover if they just lost Section 230 protections because of some unrelated court case possibly far away, and not newsworthy?
I don't know if, but I hope that, an argument like this can be useful to get this ridiculous nonsense overturned.
Everyone should be worried about this. If you think the scope of the worry is about sites having "Dirt" in the name, you are thinking too narrowly.
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Is this judge THAT removed from reality, that he never even considered the fact that MAYBE, more than one site on the entire Interwebz MIGHT use the word "dirt" in its name?
And he also NEVER considered that another site using "dirt" in its name might not be the same kind of "dirt" that "thedirty" deals in?
Those evil vacuum cleaner vendors at dirtdevil.com better take heed of this ruling!!!
Can someone just make this guy retire and get someone on the bench who can exhibit, I dunno, COMPETENCE?
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Name change?
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Re: Name change?
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Hmmmm
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Re: Hmmmm
Please don't.
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In a very literal sense...getting the dirt on someone is categoried...deframation is not truthful, but even so, common language of the term indicates deframoatory statements...That website's sole purpose is deframation because of the dirt it recieves from users...Things will always be investigated by the courts to determine defamation..
TechDirt is an online news journal/technology /legal blog and because the writers typically show evidence confirming their stories....so it's safe.
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Re:
I have heard "dirt" used to mean "all the details", though usually only when applied to a technical subject. In this case, nothing but the truth is implied.
Likewise, "digging up the dirt" on someone is often just used to refer to base gossip that is often true, even if it is maliciously spread. "Dirt" has no inherent meaning regarding truth value.
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Not so much The Internet - just how the internet exists in the US of A to US of A operators and US of A users.
I hear that techclean.com is for sale, but technotdirt.com and techdurt.com is open in case management wants to make a change.
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Re: Re:
Po-tay-to, Po-tah-to
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Where they get the name thing is anybody's guess.
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The district judge, William O. Bertelsman was born in 1936. That makes him about 77 years old now. Indeed, he took senior status in 2001. He's an old man.
The plaintiff is a cheerleader, presumably an attractive young woman. She was certainly libeled by someone.
The defendant is not sympathetic. In fact, the defendant is most probably detestable.
So, the attractive young woman was clearly wronged, and the rotten defendant appears to have had some kind of role in the matter. The old judge makes his decision.
What's the worst that can happen to the old judge, on senior status —almost retired— an old man who's never going to get a promotion? Well, he might get his decision reversed on appeal. But before his decision gets reversed, the rotten defendant is going to get dragged through the cost and ordeal of a trial.
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Re:
Sixth Circuit?
The January 10, 2012 document that you've linked is headed, “United States District Court, Eastern District of Kentucky, Northern Division at Covington”. Further, the document is signed, “William O. Bertelsman, United States District Judge”.
The U.S. District Court is not the Court of Appeals for the Sixth Circuit.
• The District Court is the trial court.
• The Circuit Court is the appellate court, which supervises the trial court.
Ordinarily, I'd just presume that you'd made a think-o, and might let it go without commenting. However, there seems to be some confusion about the roles and procedures of various courts here.
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It seems to me that when I read an opinion of a District Court Judge, if he relies on case law from another District Court, but in a different Circuit, the Circuit Court is identified, not the District Court that is within that other Circuit.
But IANAL so what do I know?
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Change the site name, stop trolls!
The domain name encourages ootb to post his dirt, better known as crap, here.
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Google "Dirt Definition" and you get: "information about someone's activities or private life that could prove damaging if revealed"
"Dirt" is INFORMATION, information is fact, so a site encouraging dishing dirt on an entity is encouraging the revalation of little known facts that may be damaging. Now correct me if I'm wrong, but revealing facts is not defamation (defamation is only where someone lies to cause damage to someones image). So doesn't the work Dirt in the title try to stop defamation, and ensure safe harbour?
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I could say "you are an idiot" that is information but it is not necessarily fact, (although it probably is).
Revealing the truth is not defamation, but revealing information that is not a fact can be.
Nice try to do the usual TD thing and redefine words to suit your half assed argument.
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Breaking News
Those who have not bathed in three days (ie dirty) are no longer afforded their constitutional rights.
Film at eleven
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How is this different from 'sucks' sites?
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